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ELECTORAL COUPS: A rough guide to winning elections in Kenya

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The Supreme Court’s courageous act of annulling Kenya’s August 8, 2017 presidential election seems to have plunged Kenya into a deep political crisis, especially after the withdrawal of Raila Odinga and Kalonzo Musyoka from the October 26 re-run. However, if the court’s decision compounded Kenya’s political crisis, it was not so much because it radically departed from Africa’s well-thumped jurisprudence on presidential election disputes. Rather, it was because the court inadvertently saddled Kenyans with an electoral coup — something that neither a resolute and courageous court nor a beleaguered and isolated opposition could contain, singly or jointly.

The Supreme Court judges and a renegade commissioner blew the cover off the Independent Electoral and Boundaries Commission (IEBC). The strategically located co-conspirators within the IEBC were identified and named, but unashamedly stayed put. The IEBC threatened to revert to its factory settings.

Ominous indicators

The Supreme Court expected nothing but a fresh election held in strict accordance with the constitution and the law. However, barring a last-minute court intervention out of the many cases now before the judges of High Court and the Supreme Court, Kenya looked set for a coup.

Several ominous indicators pointed to the possibility of a coup: Externally, the contested presidential election re-run on 26 October was notably and explicitly endorsed by the United Nations, the African Election Observer Group, and the US-led “international community”, which downplayed fears expressed by the IEBC’s commissioner Roselyne Akombe and its chairman Wafula Chebukati that the IEBC, as currently constituted, could not hold a credible election. These officials told the world that the IEBC was compromised and was held captive by four commissioners, some members of staff and the Chief Executive Officer, who opposed the chairman’s proposed reforms.

Internally, signs that a coup was in the offing included the military-like poses of the Jubilee party’s leaders, who were seen wearing red berets and military fatigues (contrary to the law) in readiness to salute any order given by their commander. The subliminal message of this militant posturing was not lost on the Kenyan public.

In a show of military might, the government sent the paramilitary and police mostly to opposition strongholds of Western Kenya, Coast, Nairobi and parts of the Rift Valley. There were also reports of militia groups allied to the Jubilee party taking a new form of Nthenge oaths in Nairobi’s Lucky Summer estate to the chants of “thaiya thai thai”.

Internally, signs that a coup was in the offing included the military-like poses of the Jubilee party’s leaders, who were seen wearing red berets and military fatigues (contrary to the law) in readiness to salute any order given by their commander.

On its part, the opposition withdrew from the presidential election and vowed that there would be no election on 26 October. It violently disrupted IEBC preparations for the new election in the counties of Siaya, Homa Bay, Migori and Kisumu. It remained intransigent, bloodied but unbowed, mobilised and charged, but isolated internationally.

The counter-coup

The C-word (coup) has been used by some Kenyans to define the significance of the 1 September 2017 Supreme Court verdict nullifying the 8 August election. None other than Uhuru Kenyatta, the would-be principal beneficiary of the IEBC’s “illegalities and irregularities”, rattled and rankled by the court’s decision, called the court’s verdict a judicial coup. He was echoing the dissenting Supreme Court judge Njoki Ndungu’s verdict in which she cast aspersions on the integrity of the majority of her fellow Supreme Court judges and of the judicial process that led to the nullification of the election.

However, Uhuru’s charge of a judicial coup is a non-starter. It lacks the watermarks of one. There is no credible evidence that by annulling the presidential results the majority in the Supreme Court bench acted in haste, exercised their powers in an extra-constitutional or illegal manner, or declared an underserving candidate the winner of the 2017 presidential election – all backed by the threat or use of violence, against anyone and everyone resisting such a plot.

Uhuru’s charge of a judicial coup, therefore, served to divert attention from what truly imperils Kenya’s democracy: electoral coups.

An electoral coup is a fairly recent phenomenon but has striking similarities to a military coup d’état. In both electoral and military coups, the conspirators identify the strategic locus or loci of state power, which they attempt to infiltrate and control. They then use these centres of power to acquire the remaining levers of state machinery, and eventually the state.

But before we get to that point, we must ask whether the concept of a coup hold the key to understanding the complexity of Kenya’s electoral politics at this juncture? Technically no, because in a classic coup d’état, the state is overthrown (usually through the use of violence) by a rebel or military group. In this case, it was the state that engineered a coup to subvert or overthrow state institutions, particularly the electoral commission. So if the Supreme Court ruling was a judicial coup, then the 26 October election could be described as an electoral coup, or a counter-coup that sought to defy or invalidate the Supreme Court decision.

An electoral coup is a fairly recent phenomenon but has striking similarities to a military coup d’état. In both electoral and military coups, the conspirators identify the strategic locus or loci of state power, which they attempt to infiltrate and control. They then use these centres of power to acquire the remaining levers of state machinery, and eventually the state. All coups succeed or fail to the extent that they are able to create and sustain a perception of victory once they have seized a strategic locus of state power.

The coup plotters deploy threat or use of violence against those who may resist them, and carefully identify their friends as well as their enemies and opponents whose capacity for resistance must be sabotaged or neutered sequentially or simultaneously. Some of these enemies must be targeted through a long-term process, but others must be taken by surprise on the day of the coup.

Electoral coups also adopt military warfare techniques, such as the use of psychological operation tactics (pys-ops) and the use of civic spaces of democracy, such as Kenya’s oligopolistic “mainstream” media, PR agencies and social media. These tactics are used to create and sustain a perception of the incumbent’s inevitable victory or invincibility, to fan and exploit citizens’ fear of political violence, to intimidate the opposition, to sustain a façade of the independence of the electoral commission, and to dominate the framing of the political contest and narratives of victory and loss. Electoral coups can be bloody or bloodless.

Kenya’s experience in its last three elections suggests that electoral coups are made up of these elements and more. The preferred locus of execution of these coups has been the electoral management body, the Supreme Court, or both. It usually harangues the opposition to go to court, not for justice, but as means of obtaining judicial imprimatur for its politically cathartic and legitimating value.

Military coups

Pictures of army tanks rolling down the city’s main street, soldiers in military fatigues with belts of bullets strapped across their chests patrolling the streets or standing guard around iconic public buildings within a capital city, the seizure and control of the state-owned national radio and television station by these forces, the continuous broadcasting of political martial music and “revolutionary” messages by “a redemption council” or “a revolutionary council” – these images are usually associated with military coup d’états, which generally set an organised army unit or units against the rest of the armed forces and society, which they dominate both by the threat or use of force, superior organisational ability, weaponry and the capacity to outlast any resistance.

In a paper published by the Albert Einstein Institution, Gene Sharp and Bruce Jenkins define a coup as “a rapid seizure of physical and political control of the state apparatuses by illegal action of a conspiratorial group backed by the threat or use of violence.” This speaks to the surprise, speed, means and the immediate strategic targets of coup makers.

However, there is more to the making of military or other types of coups. A military coup d’état is typically the ultimate pitched battle, asymmetrical warfare between the coup plotters who command an army or units of armed formations, on the one hand, and the armed formations of the state that are not party to the plot, on the other. The state could or could not be aided in its resistance to this power grab by civic institutions and unarmed but organised political groups, as well as rag-tag militia.

Competitive authoritarian regimes are states whose politics is defined by an odd mix of nascent liberal democracy and authoritarian carry-overs from one-party rule. These regimes are torn between democracy (with its strong local support base) and declining international support of its yesteryear benefactors (the West) who are playing catch-up with the rising authoritarian pull of a Chinese debt-bondage driven by a multipolar global system.

Coups are executed with speed, but take a long time to plan. They involve the identification, infiltration and control of strategic loci of state power. Usually, coup makers recruit key persons in charge of critical functions at strategic loci of state power, people whose simultaneous or separate but sequential acts, under the instruction of the coup plotters, enable the coup makers to take control of a strategic centre of state power, and use that to take control of the rest of the state machinery and to impose their rule on a people.

Coups in competitive authoritarian regimes

Competitive authoritarian regimes are states whose politics is defined by an odd mix of nascent liberal democracy and authoritarian carry-overs from one-party rule. These regimes are torn between democracy (with its strong local support base) and declining international support of its yesteryear benefactors (the West) who are playing catch-up with the rising authoritarian pull of a Chinese debt-bondage driven by a multipolar global system. Their politics is asymmetrical warfare, neither wholly determined by brute force (by the state security apparatus, state-sanctioned militia or opposition sanctioned militia) nor by civic actions, but by a mix of both, especially during general elections. Courts play an important role in recalibrating the balance of forces in this warfare.

Although military tanks on the streets of a capital city represent the dominant image of a coup d’état, there can be many other types of coups, defined by the locus of their execution, as there are centrally located levers of state power in a competitive authoritarian regime. The conspirators can seize these strategically-placed levers of state power and use them to control the rest of the state machinery.

In a competitive authoritarian regime such as Kenya, it is these loci of power – defined by highly centralised bureaucratic structures and decision making in the hands of a few – that are the prized targets of coup makers. The IEBC’s national tallying centre and the Supreme Court of Kenya fall into this category.

Elections are a perilous moment for such regimes. They present the ruling party with a dilemma: how to stage electoral contests that do not threaten the status quo but lend the regime a veneer of democratic legitimacy. Such democratic charades have great purchasing power among the self-declared “international community” (Western powers), especially in a world where political stability, as opposed to democratic niceties, is gaining currency.

Elections are anxious moments because they are a time when state power rests and shifts from one temporary locus to the other – from the substantive holder of the office of the presidency to the electoral commission or the judiciary. The electoral commission or the judiciary act as temporary custodians of state power, with enormous fiduciary powers. As the interim custodians of both state power and the people’s will, the chairman of the electoral commission or Supreme Court judges, acting singly or jointly, can declare any presidential candidate a winner according or contrary to the democratic will of the voters, the constitution and electoral laws.

Several acts, sequentially executed, in the run-up to and after the last three general elections in Kenya, seem to suggest that electoral coups have become the preferred mode of grabbing state power under the guise of a competitive election.

What’s more, an electoral moment throws up multiple strategic vulnerabilities: the counting, tallying and declaration of election results and the resolution of any dispute arising from such an exercise. Any of these loci of state power can be seized and used to acquire the rest of the state machinery. Or a combination of all these points can be captured and used to acquire the rest.

Kenya’s electoral coups

Several acts, sequentially executed, in the run-up to and after the last three general elections in Kenya, seem to suggest that electoral coups have become the preferred mode of grabbing state power under the guise of a competitive election. These coups are executed through a process of infiltration, seizure and control of the electoral management body to produce preferred outcomes and through the use of a cross-section of state security to put down any resistance.

Since 2007, Kenya has experienced this form of power grab, partly made possible by the electoral management body’s acts of “human error, fatigue, and technological failure” – which always happen only in favour of the incumbent or the incumbent’s preferred candidates – and by the cynical invocation or use of the judicial system to legitimise such a power grab.

The 2007 Kibaki coup

Mwai Kibaki’s 2007 power grab surprised many, not least the Kriegler Commission, which noted the strange circumstances surrounding the final announcement of the results of the presidential election and the low-key swearing-in ceremony at State House on the evening of 30 December 2007, a day before the official expiry of Kibaki’s first term in office.

Protracted political stalemate at the Kenyatta International Conference Centre (KICC), the national tallying centre, could have spilled over into a crisis of legitimacy for the incumbent, denying Kibaki the strategic advantage of bargaining with his opponent from an advantaged position as the commander-in-chief of the all the armed forces who could exercise the full powers of the office of the president.

Kibaki’s 2007 “victory” out of a muddled electoral process was a coup; it relied on sequential or simultaneous acts of infiltration and control of a strategic locus of state power (the ECK) and used the threat of violence to neutralise resistance.

Many Kenyans were surprised by the sight of the “Ninja turtles” that descended on the KICC just before the results were announced. These police officers – dubbed “Ninja turtles” by Kenyans because of their striking resemblance to the fictional Teenage Mutant Ninja Turtle cartoon characters – are mostly from the Rapid Deployment Unit of the Administration Police, the police unit that is under the command of the Minister of Internal Security and which had grown spectacularly in strength, capability and numbers during the Kibaki regime.

The political significance of the chaos at KICC – with the chairman of the electoral commission, Samuel Kivuitu, literally under siege – the hasty swearing-in of Kibaki at dusk and the growth in numbers and strength of a civilian-commanded police force under a regime that ostensibly upheld citizens’ right to protest and picket was not lost on the majority of Kenyans.

Similarly, the political significance of the lack of preparedness of all the armed forces, except the military, and the lack of co-ordination among security chiefs at various levels (district, provincial and national) was not lost on the Waki Commission that was set up to look into the violence that erupted after that disputed election.

These acts, coupled with the cordoning off of the KICC by the General Service Unit (GSU), the revelation that the Electoral Commission of Kenya (ECK) had been infiltrated by the National Intelligence Service and rogue returning officers, and the opaque system of counting and tallying results at the KICC, suggested a coup plot via the electoral locus.

Kibaki’s 2007 “victory” out of a muddled electoral process was a coup; it relied on sequential or simultaneous acts of infiltration and control of a strategic locus of state power (the ECK) and used the threat of violence to neutralise resistance. It deployed police around the main entrances and exits of urban slums, cordoned off public spaces, such as Uhuru Park, for months on end and restricted public broadcasts to weaken the opposition’s ability to organise or mobilise protests against the regime.

The successful execution of a coup requires the active participation of some armed formations that have the capability to repress any anticipated forms of armed or civilian resistance. It also requires “neutral” or “professional” police and military forces – an unprepared police force, security committees that didn’t meet, and a prepared but professional army, which maintains its neutrality while the coup plot unfolds. Such a coup can gain legitimacy through the tacit or explicit approval of the international community, particularly countries whose military bases are located in Kenya, the UN headquarters in Nairobi, and strategic countries that Kenya relies on for military support.

Simply put, a Kibaki-style coup plot succeeds when it faces no credible or active internal threat from any other armed formation, except the unarmed civilian mobs of protestors or gangs armed with bows and arrows, who can easily be contained by the police and the paramilitary under the guise of maintaining law and order.

Kenya’s first successful electoral coup in 2007 was bloody. But if the securocrats and the Kibaki-aligned political elite hewed Kenya’s body politic “like a carcass fit for the hounds,” in 2007, then in 2013 they “carved it as a dish fit for the gods” with peace campaigns and “accept and move on,” messages.

How the Kibaki coup was executed and the resistance against it has informed the subsequent attempts. Though successful, Kibaki’s 2007 seizure of state power was seen to have had several weaknesses, which cost him the complete control of state power (a “nusu mkate” coalition government) and endangered real or perceived Kibaki supporters in opposition strongholds, especially in the Rift Valley. The resistance against it, nationally and internationally, nearly consumed the regime’s success.

Importantly, Kibaki’s plot had failed to create a perception of victory. His Party of National Unity’s campaign was seen as lethargic and as lacking an effective communication strategy: it failed to manage public perception (opinion polls) and to trumpet Kibaki’s economic achievements. Even its successful attempts to rope in top editors who authored “Save Our Country’ headlines was seen as a little too late.

Kenya’s 2013 electoral experience was sublime. The electoral process was a well-designed psychological operation to create and sustain a perception of victory, coupled with mediated reportage and embedded intellectuals, as well as co-option of a cross-section of the civil society groups to preach peace.

Similarly, its diplomacy was wanting and no match for the diplomatic charm offensive of some of Kenya’s astute human rights and democracy activists who had contacts in high places in the West. It strengthened the opposition, the pro-democracy forces and the reform agenda against the regime. Importantly, it allowed too many concessions, especially the enactment of the 2010 Constitution of Kenya.

The 2013 digital coup

The evil genius of the Jubilee party’s 2013 electoral coup was to turn Kibaki’s coup on its head: rewrite the old military coup d’état manual and distill out of it evil lessons with which to subvert Kenya’s democratic processes and institutions.

Kenya’s 2013 electoral experience was sublime. The electoral process was a well-designed psychological operation to create and sustain a perception of victory, coupled with mediated reportage and embedded intellectuals, as well as co-option of a cross-section of the civil society groups to preach peace.

Critical media coverage was disarmed through peace journalism. Media coverage critical of the IEBC was equated with inciting political violence. Claims by the opposition, which deserved a critical look, were brushed aside as acts of incitement. Jubilee ran a glitzy and energetic campaign. Its victory was prophesised by the talk of a “tyranny of numbers” that assured a win for the UhuRuto alliance.

 In 2013, the locus of the electoral machinery was relocated to the Bomas of Kenya (a rondavel-like auditorium that was created to host cultural events), away from Nairobi central business district and an easy location to secure. The election was choreographed as a national cultural event or a public holiday that culminates in the appearance and address by the president. Choirs sang to soothe the anxieties of a nation still smarting from the trauma of the 2007 general election, anxiously awaiting the announcement of the winner, while the electoral body’s commissioners, like members of a cultural troupe, took turns to announce the results.

Yet something was amiss. The biometric voter identification and electronic transmission of results failed. The numbers being beamed on the screen were not adding up; they were not even divisible by a factor that Isaak Hassan, the then chairman of the commission, said was the multiplier. Rejected votes seemed to have been the unnamed candidate in the race. There was no way to verify that the numbers presented by the IEBC truly reflected the will of Kenyan voters.

The result was strategically announced in the middle of the night to give security forces ample time to plan for any form of resistance. As many as 150,000 officers from different armed formations (Kenya Police, GSU, Prisons, Kenya Wildlife) had been mobilised, trained and deployed to secure the 2013 election, though this was not made public.

The coup de grace was delivered through a pys-op that at once painted Raila Odinga as the personification of political violence and harangued him to accept the results of the presidential election, and if he was dissatisfied, to seek judicial redress.

Aggrieved by the results, the Raila-led opposition went to court. The newness of the Supreme Court, the refreshing leadership of Chief Justice Willy Mutunga, a well-known human rights defender, and the court’s new olive green and yellow striped robes and no-wigs-or-bibs attire inspired confidence. However, the judges unanimously disallowed the bulk of the evidence the opposition had hoped would prove its case, citing constitutional time constraints.

The IEBC numbers on the 2013 presidential election, like its voter register, kept changing, and took an extraordinarily long time to finally be posted for public scrutiny. Without a stable register of voters, the “tyranny of numbers” became a self-fulfilling prophecy that no one could test, but a valuable tool for creating and sustaining a perception of invincibility.

The Supreme Court’s own self-initiated process of examining the records of the IEBC failed the integrity test. The court let the IEBC off the hook.

Kenyans had to wait for the 2017 new-look Supreme Court bench to get a glimpse into how the bureaucratic mischief, malfeasance and malice by the IEBC secretariat works to produce winners of presidential elections, and to get a sense of what goes on within secured spaces, away from the public glare, where IEBC clerks verify and tally the results of various polling stations.

The IEBC numbers on the 2013 presidential election, like its voter register, kept changing, and took an extraordinarily long time to finally be posted for public scrutiny. Without a stable register of voters, the “tyranny of numbers” became a self-fulfilling prophecy that no one could test, but a valuable tool for creating and sustaining a perception of invincibility.

August 2017: Robbery with violence

This year’s script was an amalgam of the 2013 and the 2007 experiences. Several reform processes and anxieties around insecurity during elections provided a perfect cover. The locus of the execution of the coup was the IEBC, buoyed by the mantra that no court in Africa has ever nullified a presidential election.

The 8 August 2017 election was preceded by a number of preemptive strategies and strikes, variously aimed at pro-democracy non-governmental organisations and foundations associated with key opposition figures with the aim of incapacitating resistance against the regime. The NGO Coordination Board’s attempts to close down the accounts of the Kalonzo Musyoka Foundation, the Kidero Foundation, and a foundation associated with Rosemary Odinga, Raila’s daughter, fall into this category. Libel laws enacted by the Jubilee government and the creation of a central government advertisement agency also came in handy when manipulating Kenya’s oligopolistic main-street media.

Resistance to an electoral coup was largely expected to rise from the core of Raila Odinga’s constituency and a few human rights and democracy non-governmental organisations. Jubilee went for both with speed once the result had been declared: indiscriminate state violence and attempts to close AFRICOG and the Kenya Human Rights Commission fall into this pattern.

How Jubilee executed this year’s scheme is a classic study on how a coup strategy was interwoven into Kenya’s electoral process and performed through routine acts of government functions, using the very institutions democracy depends on, without rousing suspicion among the citizens. A look at its key aspects demonstrates how an electoral coup works.

The Jubilee campaign, like the one in 2013, was energetic and glitzy. It was largely amplified by the President’s Delivery Unit’s advertisements: “GoK Delivers”; “+254 Tuko na Plus Kibao”; advertisements that claimed that Kenya had registered exceptional achievements in many fields, such as provision of “free” maternity services amidst a protracted strike by health workers. Jubilee made several campaign forays into what were considered swing constituencies or loose pro-opposition strongholds in Kisii, Bugoma, Kajiado and other areas.

If issues do not count in Kenya’s politics, and only ethnicity does, then how could the government improve its electoral chances when the Jubilee government is widely perceived to be dominated mostly by the elite of just two ethnic groups and didn’t even attract any significant symbolic defection of notable ethnic leaders in the run-up to the August 8 election?

Regime-aligned intellectuals, like Misigo Amatsimbi, writing two days before the poll, predicted Jubilee’s victory, complete with the numbers and the expected ethnic shifts in voting patterns. These numbers, expressed in percentage form, bear an uncanny resemblance to the figures IEBC would later disown in court, and variously call “data, provisional text data or statistics”.

Narratives of Jubilee’s victory, mostly by analysts who had simply ignored the confounding figures IEBC was beaming through the public portal, used “data” from secondary sources, used only form 34B, or relied on the incomplete records of the polling station results, the form 34A.

Vowing that Kenya’s presidential election was nothing but an ethnic census, where issues count for little, Misigo used the last census figures to approximate the number of votes that either Raila Odinga or Uhuru Kenyatta would get at varied levels of voter turnout among various Kenyan ethnic groups. In this analysis, Jubilee recorded a remarkable improved performance among the following ethnic groups: Somali, Samburu, Borana, Luhya, Maasai, Kamba and Kisii. Amatsimbi predicted 10.6 million votes (54%) in Uhuru’s first round win against Raila Odinga’s 8.8 million votes (44%). Misigo’s narrative and numbers don’t just add up.

Charles Hornsby had a similar prediction, which was based on a more sophisticated model that was gleefully rehashed by Bitange Ndemo, another regime intellectual, but which curiously sought validation in the hard-to-vouch form 34B after the declaration of the results.

Nor does “the Jubilee inroads into the opposition stronghold” narrative hold water. If issues do not count in Kenya’s politics, and only ethnicity does, then how could the government improve its electoral chances when the Jubilee government is widely perceived to be dominated mostly by the elite of just two ethnic groups and didn’t even attract any significant symbolic defection of notable ethnic leaders in the run-up to the August 8 election?

Infiltration and control of the commission

These numbers served an important role. They conditioned Kenyans to accept a Jubilee victory as something that had been scientifically foretold. They also enabled the narratives of certain victory, which gained currency immediately after the IEBC announced the results.

However, it is now clear that no one, not even the IEBC, could vouch for them. What is more, it is now clear how bureaucratic mischief, malice and malfeasance account for what was previously excused as “human error, fatigue and technological failure,” and how these acts produce presidential victory.

Wafula Chubukati, the chairman of the electoral commission, declared Uhuru Kenyatta the winner of the presidential election without receiving results from a substantial number of polling stations. Why did Chebukati declare the results of the election prematurely when the law allowed a few more days for a thorough job? Why was he waffling, lost in procedure, before declaring the results of the August 8 presidential election?

The Supreme Court found that numerous election return papers, notably form 34 C for the declaration of presidential results, lacked the mandatory security features, which raised suspicions that they could be fake. Why did Ezra Chiloba, the CEO of the IEBC, repeatedly remind Kenyans that the results being beamed through the public portal were results from 288 out of 290 constituencies shortly before the results were declared, only for the IEBC to disown these results as “data, provisional text data, statistics”?

Chiloba also told the BBC that some data entry clerk created an email account in the chairman’s name without the chairman’s knowledge, and used it to conduct about 9,000 transactions in the electoral database. Chiloba’s only regret was that the account was not created under a different (institutional) name. He did not question the ethical issue it raised: Why were these transactions conducted without the knowledge of the chairman? What motive was behind this?

According to the IEBC, in the 8 August election, there were more than 11,000 polling stations that were out of reach of the network coverage of Kenya’s three mobile service providers. However, in the fresh election on 26 October, this number had reduced drastically to only 300. This reduced figure was not accompanied by any report that showed that the mobile phone companies had made massive investments to improve network coverage between the August election date and the election date in October.

IEBC’s conduct reeks of bureaucratic mischief, malice and malfeasance. Chebukati and Akombe’s memos indicating that not everything was above board point to this. There can be no doubt that the IEBC is a compromised institution, infiltrated and controlled by those who control four of the now six commissioners. The devil is in the malicious detail of everyday bureaucratic decisions, procedures, rules and regulations. In the Maina Kiai versus the IEBC case, the Court of Appeal warned the IEBC against this kind of mischief. However, the IEBC’s defiance of court orders points to a compromised institution that enjoys the protection of the powers that be.

Hotspots talk

In the run-up to the August 8 election, claiming to have learnt from history, the Kenya Police, the National Cohesion and Integration Commission and the IEBC mapped, profiled and marked regions that they referred as hotspots. The state mobilised an unprecedented 180,000 officers from various armed formations, over 30 specialised armoured anti-protest vehicles and helicopters for rapid deployment. (Coup plots work best with a mixed force, capable of executing orders as given, but incapable of executing a countercoup.)

At first glance, the list of places labeled hotspots appeared inclusive, it contained both the incumbent’s and the opposition’s strongholds, areas that had experienced political violence in the past general elections. However, some state action told a different story. The police held protest control simulation only in Kisumu and Nairobi. Only Kisumu and Oyugis, both in the opposition stronghold, received body bags, ostensibly as part of first aid kits donated by an NGO. That’s a Kenyan first in the history of first aid.

The lopsided deployment of the armoured vehicles, body bags and rehearsals for protest control told a different story. It suggested a strategy informed by a predetermined electoral outcome, a contest with a known winner and loser, and predictably, where the results of the presidential election would either bring joy or disappointment.

The Supreme Court stood up to something insidious that has been gnawing at the heart of Kenya’s democracy since 2007, something that neither the Johann Kreigler Commission in 2007 nor the Supreme Court in 2013 managed to correct. Unlike Kibaki’s 2007 coup, which unintentionally produced comprehensive reforms, the 2017 plot seeks to upend the 2010 Constitution of Kenya.

Hotspots talk was a camouflage. It provided a perfect cover for an armed repression of protests against the IEBC’s attempt to unconstitutionally and illegally make Uhuru Kenyatta the president of Kenya. Recent human rights reports now confirm that the police may have killed up to 67 people, mostly in opposition strongholds, and especially in urban slums.

Monopolising the narrative

If the violence of an electoral coup looks strikingly similar to that of a classic military coup, then how it monopolises communication in a pluralistic media landscape sets it apart from the latter. In a typical military coup in a state-owned media era, the seizure and control of the only broadcast house more or less guarantees the coup makers a monopoly over the most effective means of communication.

Kenya’s experience suggests that the electoral coup plotters used a markedly different approach to attain the same results. The idea was not so much to seize a broadcast house as it was to dominate the narrative on the critical aspects of the electoral process. This was achieved through various approaches, including intimidation of media houses, ordering broadcasting stations to not announce unofficial presidential results, imposing a reliance on the IEBC “public portal” (the pot of statistics and provisional text data, which the commission itself disowned), and investment in heavily PR-mediated news reporting and analysis.

PR spins

The PR spin on the results was remarkable. As Wandia Njoya pointed out, in reporting the results, the burden of proof was put on the opposition to “substantiate the claims”, not on the IEBC, the principal author of the confounding statistics, to explain the anomalies and irregularities, the processes, and the missing polling station data (forms 34A). Any coverage that deflected attention away from the IEBC was welcome. Favourable observer reports were amplified, while those critical of the process were suppressed.

The Cabinet Secretary in charge of communication and the government’s communication authority repeatedly warned Kenya’s “main-street” media against broadcasting unofficial results and threatened sanctions on any media house that would dare to broadcast them. These directives of questionable legal basis had one effect: they allowed the government to control the narratives on the election. Moreover, the government raided the opposition parallel vote-tallying center in Nairobi. This was an attempt to neutralise any competing source of information and make the citizenry dependent on the only one source of information, the one controlled by the compromised electoral commission.

Rollback of reforms

Whether or not the Supreme Court upheld or annulled the results of the August 8 presidential election, Kenya’s democracy was damned either way. The judicial coup would inevitably be followed by an electoral counter-coup.

The Supreme Court stood up to something insidious that has been gnawing at the heart of Kenya’s democracy since 2007, something that neither the Johann Kreigler Commission in 2007 nor the Supreme Court in 2013 managed to correct. Unlike Kibaki’s 2007 coup, which unintentionally produced comprehensive reforms, the 2017 plot seeks to upend the 2010 Constitution of Kenya.

The Court exposed the Jubilee government’s attempt to rewrite the Kibaki plot, whose ambition included the control of all centres of power that check the presidency. Momentarily, the court had wrong-footed a well laid-out coup plot whose full scope will, hopefully, become clearer once the unprecedented 300 election petitions filed against various candidates in the just concluded general election, especially those from the “inroad” constituencies, are determined.

A weird reversal of aspirations seems afoot. The government has created an incumbent-friendly electoral commission. It only awaits presidential ascent or tweaking to take care of any contingency, for example, the resignation of its chairman. If this becomes law, it will institutionalise all the IEBC’s bureaucratic mischief, malfeasance and malice that led to the annulment of the August 8 presidential election.

By Akoko Akech
Akoko Akech, presently a graduate student at the Makerere Institute of Social Research, was the program officer in charge of the Society for International Development (SID-East Africa) and Institute for Development Studies’ book project, Karuti Kanyinga and Duncan Okello (eds.,) Tensions and Reversals in Democratic Transition: Kenya’s 2007 General Election, and the Working Paper Series on the Constitution of Kenya, 2010.  

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Akoko Akech is a graduate student at the Makerere Institute of Social Research, presently living in Kisumu.

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A Dictator’s Guide: How Museveni Wins Elections and Reproduces Power in Uganda

Caricatures aside, how do President Yoweri Museveni and the National Revolutionary Movement state reproduce power? It’s been 31 years.

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Recent weeks have seen increased global media attention to Uganda following the incidents surrounding the arrest of popular musician and legislator, Bobi Wine; emblematic events that have marked the shrinking democratic space in Uganda and the growing popular struggles for political change in the country.

The spotlight is also informed by wider trends across the continent over the past few years—particularly the unanticipated fall of veteran autocrats Muammar Gaddafi in Libya, Hosni Mubarak in Egypt, Yaya Jammeh in Gambia, and most recently Robert Mugabe in Zimbabwe—which led to speculation about whether Yoweri Museveni, in power in Uganda since 1986, might be the next to exit this shrinking club of Africa’s strongmen.

Yet the Museveni state, and the immense presidential power that is its defining characteristic, has received far less attention, thus obscuring some of the issues at hand. Comprehending its dynamics requires paying attention to at-least three turning points in the National Resistance Movement’s history, which resulted in a gradual weeding-out of Museveni’s contemporaries and potential opponents from the NRM, then the mobilisation of military conflict to shore up regime legitimacy, and the policing of urban spaces to contain the increasingly frequent signals of potential revolution. Together, these dynamics crystallised presidential power in Uganda, run down key state institutions, and set the stage for the recent tensions and likely many more to come.

The purge

From the late 1990s, there has been a gradual weeding out the old guard in the NRM, which through an informal “succession queue,” had posed an internal challenge to the continuity of Museveni’s rule. It all started amidst the heated debates in the late 1990s over the reform of the then decaying Movement system; debates that pitted a younger club of reformists against an older group. The resultant split led to the exit of many critical voices from the NRM’s ranks, and began to bolster Museveni’s grip on power in a manner that was unprecedented. It also opened the lid on official corruption and the abuse of public offices.

Over the years, the purge also got rid of many political and military elites—the so-called “historicals”—many of whom shared Museveni’s sense of entitlement to political office rooted in their contribution to the 1980-1985 liberation war, and some of whom probably had an eye on his seat.

By 2005 the purge was at its peak; that year the constitutional amendment that removed presidential term limits—passed after a bribe to every legislator—saw almost all insiders that were opposed to it, summarily dismissed. As many of them joined the ranks of the opposition, Museveni’s inner circle was left with mainly sycophants whose loyalty was more hinged on patronage than anything else. Questioning the president or harboring presidential ambitions within the NRM had become tantamount to a crime.

By 2011 the process was almost complete, with the dismissal of Vice President Gilbert Bukenya, whose growing popularity among rural farmers was interpreted as a nascent presidential bid, resulting in his firing.

One man remained standing, Museveni’s long-time friend Amama Mbabazi. His friendship with Museveni had long fueled rumors that he would succeed “the big man” at some point. In 2015, however, his attempt to run against Museveni in the ruling party primaries also earned him an expulsion from both the secretary general position of the ruling party as well as the prime ministerial office.

The departure of Mbabazi marked the end of any pretensions to a succession plan within the NRM. He was unpopular, with a record tainted by corruption scandals and complicity in Museveni’s authoritarianism, but his status as a “president-in-waiting” had given the NRM at least the semblance of an institution that could survive beyond Museveni’s tenure, which his firing effectively ended.

What is left now is perhaps only the “Muhoozi project,” a supposed plan by Museveni to have his son Muhoozi Kainerugaba succeed him. Lately it has been given credence by the son’s rapid rise to commanding positions in elite sections of the Ugandan military. But with an increasingly insecure Museveni heavily reliant on familial relationships and patronage networks, even the Muhoozi project appears very unlikely. What is clear, though, is that the over time, the presidency has essentially become Museveni’s property.

Exporting peace?

Fundamental to Museveni’s personalisation of power also has been the role of military conflict, both local and regional. First was the rebellion by Joseph Kony’s Lord’s Resistance Army in northern Uganda, which over its two-decade span enabled a continuation of the military ethos of the NRM. The war’s dynamics were indeed complex, and rooted in a longer history that predated even the NRM government, but undoubtedly it provided a ready excuse for the various shades of authoritarianism that came to define Museveni’s rule.

With war ongoing in the north, any challenge to Museveni’s rule was easily constructed as a threat to the peace already secured in the rest of the country, providing an absurd logic for clamping down on political opposition. More importantly, the emergency state born of it, frequently provided a justification for the president to side-step democratic institutions and processes, while at the same time rationalising the government’s disproportionate expenditure on the military. It also fed into Museveni’s self-perception as a “freedom fighter,” buttressed the personality cult around him, and empowered him to further undermine any checks on his power.

By the late 2000s the LRA war was coming to an end—but another war had taken over its function just in time. From the early 2000s, Uganda’s participation in a regional security project in the context of the War on Terror, particularly in the Somalian conflict, rehabilitated the regime’s international image and provided cover for the narrowing political space at home, as well as facilitating a further entrenchment of Museveni’s rule.

As post-9/11 Western foreign policy began to prioritise stability over political reform, Museveni increasingly postured as the regional peacemaker, endearing himself to donors while further sweeping the calls for democratic change at home under the carpet—and earning big from it.

It is easy to overlook the impact of these military engagements, but the point is that together they accentuated the role of the military in Ugandan politics and further entrenched Museveni’s power to degrees that perhaps even the NRM’s own roots in a guerrilla movement could never have reached.

Policing protest

The expulsion of powerful elites from the ruling circles and the politicisation of military conflict had just started to cement Musevenism, when a new threat emerged on the horizon. It involved not the usual antagonists—gun-toting rebels or ruling party elites—but ordinary protesters. And they were challenging the NRM on an unfamiliar battleground—not in the jungles, but on the streets: the 2011 “Walk-to-Work” protests, rejecting the rising fuel and food prices, were unprecedented.

But there is another reason the protests constituted a new threat. For long the NRM had mastered the art of winning elections. The majority constituencies were rural, and allegedly strongholds of the regime. The electoral commission itself was largely answerable to Museveni. With rural constituencies in one hand and the electoral body in the other, the NRM could safely ignore the minority opposition-dominated urban constituencies. Electoral defeat thus never constituted a threat to the NRM, at least at parliamentary and presidential levels.

But now the protesters had turned the tables, and were challenging the regime immediately after one of its landslide victories. The streets could not be rigged. In a moment, they had shifted the locus of Ugandan politics from the rural to the urban, and from institutional to informal spaces. And they were picking lessons from a strange source: North Africa. There, where Museveni’s old friend Gaddafi, among others, was facing a sudden exit under pressure from similar struggles. Things could quickly get out of hand. A strategic response was urgent.

The regime went into overdrive. The 2011 protests were snuffed out, and from then, the policing of urban spaces became central to the logic and working of the Museveni state. Draconian laws on public assembly and free speech came into effect, enacted by a rubber-stamp parliament that was already firmly in Museveni’s hands. Police partnered with criminal gangs, notably the Boda Boda 2010, to curb what was called “public disorder”—really the official name for peaceful protest. As police’s mandate expanded to include the pursuit of regime critics, its budget ballooned, and its chief, General Kale Kayihura, became the most powerful person after Museveni—before his recent dismissal.

For a while, the regime seemed triumphant. Organising and protest became virtually impossible, as urban areas came under 24/7 surveillance. Moreover, key state institutions—the parliament, electoral commission, judiciary, military and now the police—were all in the service of the NRM, and all voices of dissent had been effectively silenced. In time, the constitution would be amended again, by the NRM-dominated house, this time to remove the presidential age limit—the last obstacle to Museveni’s life presidency—followed by a new tax on social media, to curb “gossip.” Museveni was now truly invincible. Or so it seemed.

But the dreams of “walk-to-work”—the nightmare for the Museveni state—had never really disappeared, and behind the tightly-patrolled streets always lay the simmering quest for change. That is how we arrived at the present moment, with a popstar representing the widespread aspiration for better government, and a seemingly all-powerful president suddenly struggling for legitimacy. Whatever direction the current popular struggles ultimately take, what is certain is that they are learning well from history, and are a harbinger of many more to come.

This post is from a new partnership between Africa Is a Country and The Elephant. We will be publishing a series of posts from their site once a week.

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The Enduring Blind Spots of America’s Africa Policy

America should move way from making the military the face of its engagement with Africa and instead invest in deepening democracy as a principled approach rather than a convenient choice.

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The Enduring Blind Spots of America's Africa Policy
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While Donald Trump’s administration completely neglected America-Africa relations, the blind spots bedeviling America’s Africa policy preceded his 2016 election. Correcting the systemic flaws of the past 30 years will require a complete rethink after the controversial President’s departure.

To remedy America’s Africa policy, President Joseph Biden’s administration should pivot away from counterterrorism to supporting democratic governance as a principal rather than as mere convenience, and cooperate with China on climate change, peace, and security on the continent.

America’s Africa policy 

America’s post-Cold War Africa policy has had three distinct and discernible phases. The first phase was an expansionist outlook undergirded by humanitarian intervention. The second was nonintervention, a stance triggered by the experience of the first phase. The third is the use of “smart” military interventions using military allies.  

The turning point for the first phase was in 1989 when a victorious America pursued an expansive foreign policy approach predicated on humanitarian intervention. Somalia became the first African test case of this policy when, in 1992, America sent almost 30,000 troops to support Operation Restore Hope’s humanitarian mission which took place against the background of the collapse of the Somalia government in 1991.

On 3-4 October 1993, during the Battle of Mogadishu, 18 US servicemen were killed in a fight with warlords who controlled Mogadishu then, and the bodies of the marines dragged through the streets of Mogadishu. The media coverage increased pressure on the politicians and six months later America withdrew from Somalia — a case of the New World Order meeting the harsh reality of civil conflict.

The chastening experience resulted in America scaling back its involvement in internal conflicts in far-flung places. The result was the emergence of the second phase — non-engagement when Rwanda’s Genocide erupted in 1994 and almost a million people died in 100 days revealed the limitations of over-correcting the Somalia experience. This “non-interference” phase lasted until the twin Nairobi and Dar es Salaam US embassy bombings by Al Qaeda in 1998.

This gave way to the third phase with the realisation that the new threat to America was no longer primarily from state actors, but from transnational non-state actors using failing states as safe havens. The 2002 National Security Strategy states: “the events of September 11, 2001, taught us that weak states . . . can pose as a great danger to our national interests as strong states.”

Counterterrorism training and equipping of African militaries is the central plank of this new security policy. As a result, counterterrorism funding has skyrocketed as has America’s military footprint in Africa. As a result, Africa has become the theatre in which the Global forever War on Terror is fought.

The counterterrorism traps 

The reflexive reaction to the events of September 11 2001 spawned an interlocking web of covert and overt military and non-military operations. These efforts, initially deemed necessary and temporary, have since morphed into a self-sustaining system complete with agencies, institutions and a specialised lingo that pervades every realm of America’s engagement with Africa.

The United States Africa Command (Africom) is the vehicle of America’s engagement with the continent. Counterterrorism blurred the line between security, development, and humanitarian assistance with a host of implications including unrelenting militarisation which America’s policy establishment embraced uncritically as the sine qua non of America’s diplomacy, their obvious flaws notwithstanding. The securitisation of problems became self-fulfilling and self-sustaining.

The embrace of counterterrorism could not have come at a worse time for Africa’s efforts at democratization. In many African countries, political and military elites have now developed a predictable rule-based compact governing accession to power via elections rather than the coups of the past.

“Smart” African leaders exploited the securitised approach in two main ways: closing the political space and criminalising dissent as “terrorism” and as a source of free money. In Ethiopia, Yonatan Tesfaye, a former spokesman of the Semayawi (Blue) Party, was detained in December 2015 on charges under Article 4 of Ethiopia’s Anti-Terrorism Proclamation ((EATP), arguably one of the the country’s most severe pieces of legislation. But Ethiopia has received millions of dollars from the United States.

The Department of Defense hardly says anything in public but gives out plenty of money without asking questions about human rights and good governance. Being a counterterrorism hub has become insurance policy against any form of criticism regardless of state malfeasance.

Egypt is one such hub. According to the Congressional Research Service, for the 2021 financial year, the Trump Administration has requested a total of US$1.4 billion in bilateral assistance for Egypt, which Congress approved in 2018 and 2019. Nearly all US funding for Egypt comes from the Foreign Military Finance (FMF) account and is in turn used to purchase military equipment of US origin, spare parts, training, and maintenance from US firms.

Another country that is a counterterrorism hub in the Horn of Africa is Ethiopia. For the few months they were in charge, the Union of Islamic Courts (ICU) brought order and stability to the country.  Although they were linked to only a few of Mogadishu’s local courts, on 24 December 2006, Ethiopia’s military intervened in Somalia to contain the rise of Al Shabaab’s political and military influence.

The ouster of the ICU by Ethiopia aggravated the deep historical enmity between Somalia and Ethiopia, something Al Shabaab — initially the youth wing of the ICU — subsequently exploited through a mix of Somali nationalism, Islamist ideology, and Western anti-imperialism. Al Shabaab presented themselves as the vanguard against Ethiopia and other external aggressors, providing the group with an opportunity to translate their rhetoric into action.

Ethiopia’s intervention in Somalia could not have taken place without America’s blessing. The intervention took place three weeks after General John Abizaid, the commander of US forces from the Middle East to Afghanistan, met with the then Ethiopian Prime Minister Meles Zenawi.  The intervention generated a vicious self-sustaining loop. Ethiopians are in Somalia because of Al Shabaab, and Al Shabaab says they will continue fighting as long as foreign troops are inside Somalia.

America has rewarded Ethiopia handsomely for its role as the Horn of Africa’s policeman. In both Ethiopia’s and Egypt’s case, on the score of human rights and good governance, the net losers are the citizens.

Drone attacks 

In keeping with the War on Terror being for forever, and despite departing Somalia in 1993, America outsourced a massive chunk of the fight against Al Shabaab to Ethiopia primarily, and later, to AMISOM. America is still engaged in Somalia where it has approximately 800 troops, including special forces that help train Somalia’s army to fight against Al Shabaab.

America carried out its first drone strike in Somalia in 2011 during President Barack Obama’s tenure. Under the Trump administration, however, the US has dramatically increased the frequency of drone attacks and loosened the oversight required to approve strike targets in Somalia. In March 2017, President Trump secretly designated parts of Somalia “areas of active hostilities”, meaning that the high-level inter-agency vetting of proposed strikes and the need to demonstrate with near certainty that civilians would not be injured or killed no longer applied. Last year, the US acknowledged conducting 63 airstrikes in the country, and in late August last year, the US admitted that it had carried out 46 strikes in 2020.

A lack of transparency regarding civilian casualties and the absence of empirical evidence that the strikes lead to a reduction in terrorism in Somalia suggest that expanding to Kenya would be ill-advised. The US has only acknowledged having caused civilian casualties in Somalia three times. Between 2016 and 2019, AFRICOM failed to conduct a single interview with civilian witnesses of its airstrikes in Somalia.

Despite this level of engagement, defeating Al Shabaab remains a remote possibility.

Containing the Chinese takeover 

The Trump Administration did not have an Africa policy. The closest approximation of a policy during Trump’s tenure was stated in a speech delivered by John Bolton at a Conservative think tank decrying  China’s nefarious activities in Africa.  Even with a policy, where the counterterrorism framework views Africa as a problem to be solved by military means, the containing China policy views African countries as lacking the agency to act in their own interests. The problem with this argument is that it is patronising; Africans cannot decide what is right for them.

Over the last decades, while America was busy creating the interlocking counterterrorism infrastructure in Africa, China was building large-scale infrastructure across the continent. Where America sees Africa as a problem to be solved, China sees Africa as an opportunity to be seized.

Almost two years into the Trump administration, there were no US ambassadors deployed in 20 of Africa’s 54 countries even while America was maintaining a network of 29 military bases.  By comparison China, has 50 embassies spread across Africa.

For three consecutive years America’s administration has proposed deep and disproportionate cuts to diplomacy and development while China has doubled its foreign affairs budget since 2011. In 2018, China increased its funding for diplomacy by nearly 16 per cent and its funding for foreign aid by almost 7 per cent.

As a show of how engagement with Africa is low on the list of US priorities, Trump appointed a luxury handbag designer as America’s ambassador to South Africa on 14 November 2018. Kenya’s ambassador is a political appointee who, when he is not sparring with Kenyans on Twitter, is supporting a discredited coal mining project.

The US anti-China arguments emphasize that China does not believe in human rights and good governance, and that China’s funding of large infrastructure projects is essentially debt-trap diplomacy. The anti-China rhetoric coming from American officials is not driven by altruism but by the realisation that they have fallen behind China in Africa.

By the middle of this century Africa’s population is expected to double to roughly two billion. Nigeria will become the second most populous country globally by 2100, behind only India. The 24-country African Continental Free Trade Agreement (AfCFTA) entered into force on 30 May 2019. AfCFTA will ultimately bring together all 55 member states of the African Union covering a market of more than 1.2 billion people — including a growing middle class — and a combined gross domestic product (GDP) of more than US$3.4 trillion.

While Chinese infrastructure projects grab the headlines, China has moved into diversifying its engagement with Africa. The country has increased its investments in Africa by more than 520 per cent over the last 15 years, surpassing the US as the largest trading partner for Africa in 2009 and becoming the top exporter to 19 out of 48 countries in sub-Saharan Africa.

Some of the legacy Chinese investments have come at a steep environmental price and with an unsustainable debt. Kenya’s Standard Gauge Railway is bleeding money and is economically unviable.

A fresh start

Supporting democratic governance and learning to cooperate with China are two areas that will make America part of Africa’s future rather than its past.

America should pivot way from making the military the most visible face of its engagement with Africa and instead invest in deepening democracy as a principled approach rather than a convenient choice.

Despite the elegy about its retreat in Africa, democracy enjoys tremendous support. According to an Afro barometer poll, almost 70 per cent of Africans say democracy is their preferred form of government. Large majorities also reject alternative authoritarian regimes such as presidential dictatorships, military rule, and one-party governments. Democracy, while still fledgling, remains a positive trend; since 2015, there have been 34 peaceful transfers of power.

However, such positive metrics go hand in hand with a worrying inclination by presidents to change constitutions to extend their terms in office. Since 2015, leaders of 13 countries have evaded or overseen the weakening of term limit restrictions that had been in place. Democracy might be less sexy, but ignoring it is perilous. There are no apps or switches to flip to arrest this slide. It requires hard work that America is well equipped to support but has chosen not to in a range of countries in recent years There is a difference between interfering in the internal affairs of a country and complete abdication or (in some cases) supporting leaders who engage in activities that are inimical to deepening democracy.

The damage wrought by the Trump presidency and neo-liberal counterterrorism policies will take time to undo, but symbolic efforts can go a long way to bridging the gap.

America must also contend with China being an indispensable player in Africa and learn to cooperate rather than compete in order to achieve optimal outcomes.

China has 2,458 military and police personnel serving in eight missions around the globe, far more than the combined contribution of personnel by the other four permanent members of the UN Security Council, Russia, the US, France and Britain. China had more than 2,400 Chinese troops take part in seven UN peacekeeping missions across the continent — most notably in Mali and South Sudan. Of the 14 current UN peacekeeping missions, seven are in Africa, consuming two-thirds of the budget.

Climate change and conflict resolution provide opportunities for cooperation. Disproportionate reliance on rain-fed agriculture and low adaptation to the adverse impact of climate change make Africa vulnerable to the damaging effects of climate change, the consequences of which will transcend Africa. Through a combination of research, development, technological transfer and multilateral investment, America and China could stave off the impact of climate change in Africa.

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Hijacking Kenya’s Health Spending: Companies Linked to Powerful MP Received Suspicious Procurement Contracts

Two obscure companies linked to Kitui South MP Rachael Kaki Nyamai were paid at least KSh24.2 million to deliver medical supplies under single-source agreements at the time the MP was chair of the National Assembly’s Health Committee.

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Hijacking Kenya’s Health Spending: Companies Linked to Powerful MP Received Suspicious Procurement Contracts
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Two obscure companies linked to Kitui South MP Rachael Kaki Nyamai were paid at least KSh24.2 million to deliver medical supplies under single-source agreements at the time the MP was chair of the National Assembly’s Health Committee, an investigation by Africa Uncensored and The Elephant has uncovered.

One of the companies was also awarded a mysterious Ksh 4.3 billion agreement to supply 8 million bottles of hand sanitizer, according to the government’s procurement system.

The contracts were awarded in 2015 as authorities moved to contain the threat from the Ebola outbreak that was ravaging West Africa and threatening to spread across the continent as well as from flooding related to the El-Nino weather phenomenon.

The investigation found that between 2014 and 2016, the Ministry of Health handed out hundreds of questionable non-compete tenders related to impending disasters, with a total value of KSh176 billion including three no-bid contracts to two firms, Tira Southshore Holdings Limited and Ameken Minewest Company Limited, linked to Mrs Nyamai, whose committee oversaw the ministry’s funding – a clear conflict of interest.

Number of Suppliers Allocated BPAAlthough authorities have since scrutinized some of the suspicious contracts and misappropriated health funds, the investigation revealed a handful of contracts that were not made public, nor questioned by the health committee.

Mrs Nyamai declined to comment for the story.

Nyamai has been accused by fellow members of parliament of thwarting an investigation of a separate alleged fraud. In 2016, a leaked internal audit report accused the Ministry of Health — colloquially referred to for its location at Afya House — of misappropriating funds in excess of nearly $60 million during the 2015/2016 financial year. Media stories described unauthorized suppliers, fraudulent transactions, and duplicate payments, citing the leaked document.

Members of the National Assembly’s Health Committee threatened to investigate by bringing the suppliers in for questioning, and then accused Nyamai, the committee chairperson, of blocking their probe. Members of the committee signed a petition calling for the removal of Nyamai and her deputy, but the petition reportedly went missing. Nyamai now heads the National Assembly’s Committee on Lands.

Transactions for companies owned by Mrs Nyamai’s relatives were among 25,727 leaked procurement records reviewed by reporters from Africa Uncensored, Finance Uncovered, The Elephant, and OCCRP. The data includes transactions by eight government agencies between August 2014 and January 2018, and reveals both questionable contracts as well as problems that continue to plague the government’s accounting tool, IFMIS.

The Integrated Financial Management Information System was adopted to improve efficiency and accountability. Instead, it has been used to fast-track corruption.

Hand sanitizer was an important tool in fighting transmission of Ebola, according to a WHO health expert. In one transaction, the Ministry of Health paid Sh5.4 million for “the supply of Ebola reagents for hand sanitizer” to a company owned by a niece of the MP who chaired the parliamentary health committee. However, it’s unclear what Ebola reagents, which are meant for Ebola testing, have to do with hand sanitizer. Kenya’s Ministry of Health made 84 other transactions to various vendors during this period, earmarked specifically for Ebola-related spending. These included:

  • Public awareness campaigns and adverts paid to print, radio and tv media platforms, totalling at least KSh122 million.
  • Printed materials totalling at least KSh214 million for Ebola prevention and information posters, contact tracing forms, technical guideline and point-of-entry forms, brochures and decision charts, etc. Most of the payments were made to six obscure companies.
  • Ebola-related pharmaceutical and non-pharmaceutical supplies, including hand sanitizer
  • Ebola-related conferences, catering, and travel expenses
  • At least KSh15 millions paid to a single vendor for isolation beds

Hacking the System

Tira Southshore Holdings Limited and Ameken Minewest Company Limited, appear to have no history of dealing in hygiene or medical supplies. Yet they were awarded three blanket purchase agreements, which are usually reserved for trusted vendors who provide recurring supplies such as newspapers and tea, or services such as office cleaning.

“A blanket agreement is something which should be exceptional, in my view,” says former Auditor-General, Edward Ouko.

But the leaked data show more than 2,000 such agreements, marked as approved by the heads of procurement in various ministries. About KSh176 billion (about $1.7 billion) was committed under such contracts over 42 months.

“Any other method of procurement, there must be competition. And in this one there is no competition,” explained a procurement officer, who spoke generally about blanket purchase agreements on background. “You have avoided sourcing.”

The Ministry of Health did not respond to detailed questions, while Mrs Nyamai declined to comment on the contracts in question.

Procurement experts say blanket purchase agreements are used in Kenya to short-circuit the competitive process. A ministry’s head of procurement can request authority from the National Treasury to create blanket agreements for certain vendors. Those companies can then be asked by procurement employees to deliver supplies and services without competing for a tender.

Once in the system, these single-source contracts are prone to corruption, as orders and payments can simply be made without the detailed documentation required under standard procurements. With limited time and resources, government auditors say they struggle especially with reconciling purchases made under blanket agreements.

The agreements were almost always followed by standard purchase orders that indicated the same vendor and the same amount which is unusual and raises fears of duplication. Some of these transactions were generated days or weeks after the blanket agreements, many with missing or mismatched explanations. It’s unclear whether any of these actually constituted duplicate payments.

For example, the leaked data show two transactions for Ameken Minewest for Sh6.9 million each — a blanket purchase order for El Nino mitigation supplies and a standard order for the supply of chlorine tablets eight days later. Tira Southshore also had two transactions of Sh12 million each — a blanket purchase for the “supply of lab reagents for cholera,” and six days later a standard order for the supply of chlorine powder.

Auditors say both the amounts and the timing of such payments are suspicious because blanket agreements should be paid in installments.

“It could well be a duplicate, using the same information, to get through the process. Because you make a blanket [agreement], then the intention is to do duplicates, so that it can pass through the cash payee phase several times without delivering more,” said Ouko upon reviewing some of the transactions for Tira Southshore. This weakness makes the IFMIS system prone to abuse, he added.

In addition, a KSh4 billion contract for hand sanitizer between the Health Ministry’s Preventive and Promotive Health Department and Tira Southshore was approved as a blanket purchase agreement in April 2015. The following month, a standard purchase order was generated for the same amount but without a description of services — this transaction is marked in the system as incomplete. A third transaction — this one for 0 shillings — was generated 10 days later by the same procurement employee, using the original order description: “please supply hand sanitizers 5oomls as per contract Moh/dpphs/dsru/008/14-15-MTC/17/14-15(min.no.6).

Reporters were unable to confirm whether KSh4 billion was paid by the ministry. The leaked data doesn’t include payment disbursement details, and the MOH has not responded to requests for information.

“I can assure you there’s no 4 billion, not even 1 billion. Not even 10 million that I have ever done, that has ever gone through Tira’s account, through that bank account,” said the co-owner of the company, Abigael Mukeli. She insisted that Tira Southshore never had a contract to deliver hand sanitizer, but declined to answer specific questions. It is unclear how a company without a contract would appear as a vendor in IFMIS, alongside contract details.

It is possible that payments could end up in bank accounts other than the ones associated with the supplier. That is because IFMIS also allowed for the creation of duplicate suppliers, according to a 2016 audit of the procurement system. That audit found almost 50 cases of duplication of the same vendor.

“Presence of active duplicate supplier master records increases the possibility of potential duplicate payments, misuse of bank account information, [and] reconciliation issues,” the auditors warned.

They also found such blatant security vulnerabilities as ghost and duplicate login IDs, deactivated requirements for password resets, and remote access for some procurement employees.

Credit: Edin Pasovic/OCCRP

Credit: Edin Pasovic/OCCRP

IFMIS was promoted as a solution for a faster procurement process and more transparent management of public funds. But the way the system was installed and used in Kenya compromised its extolled safeguards, according to auditors.

“There is a human element in the system,” said Ouko. “So if the human element is also not working as expected then the system cannot be perfect.”

The former head of the internal audit unit at the health ministry, Bernard Muchere, confirmed in an interview that IFMIS can be manipulated.

Masking the Setup

Ms Mukeli, the co-owner of Tira Southshore and Ameken Minewest, is the niece of Mrs Nyamai, according to local sources and social media investigation, although she denied the relationship to reporters. According to her LinkedIn profile, Ms Mukeli works at Kenya Medical Supplies Agency, a medical logistics agency under the Ministry of Health, now embroiled in a COVID procurement scandal.

Ms Mukeli’s mother, who is the MP’s elder sister, co-owns Icpher Consultants Company Ltd., which shares a post office box with Tira Southshore and Mematira Holdings Limited, which was opened in 2018, is co-owned by Mrs Nyamai’s husband and daughter, and is currently the majority shareholder of Ameken Minewest. Documents also show that a company called Icpher Consultants was originally registered to the MP, who was listed as the beneficial owner.

Co-owner of Tira Southshore Holdings Limited, Abigael Mukeli, described the company to reporters as a health consulting firm. However Tira Southshore also holds an active exploration license for the industrial mining in a 27-square-kilometer area in Kitui County, including in the restricted South Kitui National Reserve. According to government records, the application for mining limestone in Mutomo sub-county — Nyamai’s hometown — was initiated in 2015 and granted in 2018.

Mukeli is also a minority owner of Ameken Minewest Company Limited, which also holds an active mining license in Mutomo sub-county of Kitui, in an area covering 135.5 square kilometers. Government records show that the application for the mining of limestone, magnesite, and manganese was initiated in 2015 and granted in 2018. Two weeks after the license was granted, Mematira Holdings Limited was incorporated, with Nyamai’s husband and daughter as directors. Today, Mematira Holdings is the majority shareholder of Ameken Minewest, which is now in the process of obtaining another mining license in Kitui County.

According to public documents, Ameken also dabbles in road works and the transport of liquefied petroleum gas. And it’s been named by the Directorate of Criminal Investigations in a fuel fraud scheme.

Yet another company, Wet Blue Proprietors Logistics Ltd., shares a phone number with Tira Southshore and another post office box with Icpher Consultants Company Ltd., according to a Kenya National Highway Authority list of pre-qualified vendors.

Family LinksMrs Nyamai and her husband co-own Wet Blue. The consulting company was opened in 2010, the same year that the lawmaker completed her PhD work in HIV/AIDS education in Denmark.

Wet Blue was licenced in 2014 as a dam contractor and supplier of water, sewerage, irrigation and electromechanical works. It’s also listed by KENHA as a vetted consultant for HIV/AIDS mitigation services, together with Icpher Consultants.

It is unclear why these companies are qualified to deliver all these services simultaneously.

“Shell companies receiving contracts in the public sector in Kenya have enabled corruption, fraud and tax evasion in the country. They are literally special purpose vehicles to conduct ‘heists’ and with no track record to deliver the public goods, works or services procured,” said Sheila Masinde, executive director of Transparency International-Kenya.

Both MOH and Ms Mukeli refused to confirm whether the ordered supplies were delivered.

Mrs Nyamai also co-owns Ameken Petroleum Limited together with Alfred Agoi Masadia and Allan Sila Kithome.

Mr Agoi is an ANC Party MP for Sabatia Constituency in Vihiga County, and was on the same Health Committee as Mrs Nyamai, a Jubilee Party legislator. Mr Sila is a philanthropist who is campaigning for the Kitui County senate seat in the 2022 election.

Juliet Atellah at The Elephant and Finance Uncovered in the UK contributed reporting.

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